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Information Note on the Court’s case-law 130

May 2010

Kennedy v. the United Kingdom - 26839/05

Judgment 18.5.2010 [Section IV]

Article 8

Article 8-1

Respect for correspondence

Proportionality and safeguards of legislation on interception of internal communications: no violation

Facts – The applicant was convicted of manslaughter and sentenced to a term of imprisonment. His case was controversial on account of missing and conflicting evidence. After being released from prison in 1996, he started a business. He alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time-wasting hoax calls. Suspecting that his business mail, telephone and email communications were being intercepted because of his high profile case and his subsequent involvement in campaigning against miscarriages of justice, the applicant complained to the Investigatory Powers Tribunal (“IPT”). He sought the prohibition of any communication interception by the intelligence agencies and the “destruction of any product of such interception”. He also requested specific directions to ensure the fairness of the proceedings before the IPT, including an oral hearing in public, and a mutual inspection of witness statements and evidence between the parties. The IPT proceeded to examine the applicant’s specific complaints in private. In 2005 it ruled that no determination had been made in his favour in respect of his complaints. This meant either that there had been no interception or that any interception which took place was lawful.

Law – Article 8

(a) Existence of an “interference” – In order to assess, in a particular case, whether an individual could claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court had to have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there was no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers were being abused could not be said to be unjustified. In such cases, even where the actual risk of surveillance was low, there was a greater need for scrutiny by the Court. The applicant had failed to demonstrate a reasonable likelihood that there had been actual interception in his case. However, in the light of his allegations that any interception was taking place without lawful basis in order to intimidate him, it could not be excluded that secret surveillance measures had been applied to him or that, at the material time, he had been potentially at risk of being subjected to such measures.

(b) Justification for the interference – The interference in question had pursued the legitimate aims of protecting national security and the economic well-being of the country and preventing crime. In addition, it had been carried out on the basis of the Regulation of Investigatory Powers Act 2000 (“RIPA”), supplemented by the Interception of Communications Code of Practice. The Court was required to examine the proportionality of the RIPA legislation itself and the safeguards built into the system allowing for secret surveillance. In the circumstances, the lawfulness of the interference was closely related to the question whether the “necessity” test had been complied with in respect of the RIPA regime. The Court therefore examined the RIPA regime with reference to each of the safeguards and guarantees against abuse that had been outlined in Weber and Saravia v. Germany ((dec.), no. 54934/00, 29 June 2006, Information Note no. 88) and, where relevant, to its findings in respect of the previous legislation at issue in Liberty and Others v. the United Kingdom (no. 58243/00, 1 July 2008, Information Note no. 110).

(i) Nature of the offences : RIPA provided that interception could only take place where the Secretary of State believed that it was necessary in the interests of national security, for the purposes of preventing or detecting serious crime or for the purposes of safeguarding the economic well-being of the United Kingdom. The Court found this provision sufficiently clear, given that the condition of foreseeability did not require States to set out exhaustively by name the specific offences which may give rise to interception.

(ii) Categories of persons targeted : Unlike the Liberty and Others case, the present case concerned internal communications. Under RIPA, it was possible for the communications of any person in the United Kingdom to be intercepted. However, warrants were required clearly to specify the interception subject. The indiscriminate capturing of vast amounts of communications was not permitted. In the circumstances, no further clarification of the categories of persons liable to have their communications intercepted could reasonably be required.

(iii) Duration of telephone tapping : RIPA clearly stipulated the period after which an interception warrant would expire and the conditions under which a warrant could be renewed. The renewal or cancellation of interception warrants was under the systematic supervision of the Secretary of State. The overall duration of any interception measures depended on the complexity and duration of the investigation in question and, provided that adequate safeguards existed, it was not unreasonable to leave this matter to the discretion of the domestic authorities. The Court found the relevant domestic provisions sufficiently clear.

(iv) Procedure for examining, using and storing data : Interception warrants for internal communications related to one person or one set of premises only, thereby limiting the scope of the authorities’ discretion to intercept and listen to private communications. Moreover, any captured data which were not necessary for any of the authorised purposes had to be destroyed.

(v) Processing and communication of intercept material : Domestic law strictly limited the number of persons to whom intercept material could be disclosed, imposing a requirement for the appropriate level of security clearance as well as a requirement to communicate data only so much as the individual needed to know, in particular, a summary only would be disclosed whenever sufficient. Intercept material, as well as copies and summaries, were to be handled and stored securely and to be inaccessible to those without the necessary security clearance. A strict procedure for security vetting was in place. The Court was thus satisfied that the provisions provided adequate safeguards for the protection of any data obtained.

(vi) Destruction of intercept material : The material was to be destroyed as soon as there were no longer any grounds for its retention. The necessity of such retention was to be reviewed at appropriate intervals.

(vii) Supervision of the RIPA regime : Apart from the periodic review of interception warrants and materials by intercepting agencies and, where appropriate, the Secretary of State, the Interception of Communications Commissioner established under RIPA was tasked with overseeing the general functioning of the surveillance regime and the authorisation of interception warrants in specific cases. The Commissioner was independent of the executive and the legislature and was a person who held or had held high judicial office. The obligation on intercepting agencies to keep records ensured that the Commissioner had effective access to details of surveillance activities undertaken. In addition, any person who suspected that his communications had been or were being intercepted could apply to the IPT, which was an independent and impartial body. The jurisdiction of the IPT did not depend on notification to the interception subject that there had been an interception of his communications.When the IPT found in the applicant’s favour, it could quash any interception order, require destruction of intercepted material and order compensation. The publication of the IPT’s legal rulings further enhanced the level of scrutiny over secret surveillance activities in the United Kingdom. Finally, the reports of the Commissioner scrutinised any errors which had occurred in the operation of the legislation. There was no evidence that any deliberate abuse of interception powers was taking place.

The domestic law on the interception of internal communications together with the clarifications brought by the publication of the Interception of Communications Code of Practice indicated with sufficient clarity the procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of intercept material collected. Having regard to the safeguards against abuse in the procedures as well as the more general safeguards offered by the supervision of the Commissioner and the review of the IPT, the impugned surveillance measures, in so far as they might have been applied to the applicant, had been justified under Article 8 § 2 of the Convention.

Conclusion : no violation (unanimously).

Article 6 § 1: The restrictions on the procedure before the IPT had not violated the applicant’s right to a fair trial. In reaching this conclusion, the Court emphasised the breadth of access to the IPT enjoyed by those complaining about interception within the United Kingdom and the absence of any evidential burden to be overcome in order to lodge an application with the IPT. In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considered that the restrictions on the applicant’s rights in the context of the proceedings before the IPT had been both necessary and proportionate and had not impaired the very essence of the applicant’s Article 6 rights.

Conclusion : no violation (unanimously).

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